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2026 Supreme(Online)(MP) 36862
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR
G. S. Ahluwalia, Anuradha Shukla, JJ
Mukesh Jatav – Appellant
Versus
State Of Madhya Pradesh – Respondent
CRIMINAL APPEAL No. 906 of 2017
Important Points
Subject
Criminal Law - Sexual Offences against Children
Act Referred
Headnote
(B) Evidence Act, 1872 - Section 106 - Burden of proof - Last seen proximity - Accused failed to offer explanation regarding victim's departure from his company or her physical condition despite recovery of child and belongings at his instance, fulfilling criteria for invoking Section 106. (Paras 15, 17)
(C) Sentencing - Life imprisonment under Section 376(2)(i) IPC reduced to a fixed term of 20 years of actual rigid imprisonment without remission considering lack of prior criminal antecedents. (Para 23)
Facts of the case:
Appellant kidnapped a two-year-old child on the pretext of playing, fleeing on a motorcycle. Child was recovered the following day from roadside bushes, having been subjected to rape and severe injuries. Appellant was identified by the victim's father and independent witnesses. Trial court convicted the appellant for kidnapping, rape, and attempt to murder.
Findings of Court:
Evidence of witnesses and recoveries made at the instance of the appellant establish the guilt beyond reasonable doubt. Absence of DNA evidence does not vitiate the conviction given the existence of corroborated testimonial evidence.
Issues: Whether the conviction for rape and attempted murder is sustainable without DNA evidence and dock identification by the child victim, and whether the sentence for life imprisonment requires modification.
Ratio Decidendi: Conviction is sustainable based on eyewitness testimony and recovery evidence under Section 106 of the Evidence Act. Lack of DNA test is not fatal to the prosecution if evidence is otherwise clinching. Life imprisonment for rape of a minor is modified to a 20-year fixed term in the absence of criminal history.
Result: Appeal partly allowed; conviction upheld with modified sentence.
For the Appellants/Petitioners: Ashok Jain
For the Respondents: C.P. Singh
| Table of Content |
|---|
| 1. overview of charges and factual matrix regarding kidnapping and rape of a minor. (Para 1 , 2 , 3) |
| 2. summary of rival contentions regarding false implication and evidentiary basis. (Para 4 , 5 , 6) |
| 3. appreciation of evidence and rejection of the enmity defense. (Para 7 , 8 , 9 , 10 , 11) |
| 4. admissibility of testimony and dock identification policies for child victims. (Para 12 , 13 , 14) |
| 5. application of the last-seen theory and burden of proof under section 106 of the evidence act. (Para 15 , 16 , 17 , 18) |
| 6. legal sufficiency of evidence in absence of dna testing and determination of appropriate sentencing. (Para 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26) |
J U D G M E N T
Per: Justice Anuradha Shukla
1. In this appeal, appellant is assailing his conviction under Sections 366 of IPC, 376 (2) (i) & (m) of IPC and section 307 IPC, and sentence of 10 years rigorous imprisonment with fine of Rs. 5,000/-, life imprisonment with fine of Rs. 10,000/- and 10 years rigorous imprisonment with fine of Rs. 10,000/- respectively with default stipulations, under the impugned judgment dated 06/02/2017 passed in S.T. No. 530/2014 by 5th Additional Sessions Judge, Gwalior.
2. Admittedly, the age of victim was two years at the time of incident i.e. 13/07/2014 and appellant was an acquaintance of the father of the victim. From evidence, it is also not in dispute that appellant met with a road accident, was admitted in hospital and was later brought to primary health centre, Barai where his medical examination was done in the crime under consideration.
3. Briefly stated, victim and her father were on the road in front of their house where motor cycle No. M.P. 07 / MU 3300 was also parked with key in its ignition. Appellant on the pretence of playing with victim suddenly grabbed the child in his arm, started the parked motor cycle and fled on it with the child. He was immediately chased by father of the victim and neighbour, but appellant, driving towards Gwalior, managed to elude. Appellant and victim both were searched, but when they were not found, the incident was reported by father of the victim to police station Mohna and crime No. 164/2014 was registered against appellant. Later, appellant was traced and interrogated. On his information, victim and other articles were recovered. Victim was medically examined and it was found that she was brutally raped and injured while left abandoned in bushes to die her own death. After investigation, charge sheet was filed and trial was held. Appellant was convicted and sentenced as discussed earlier.
4. Appeal has been argued on the ground that appellant has completed a custody of more than 12 years in the case which was the result of false implication on account of enmity. According to appellant, there was some financial dispute between him and father of the victim, for which, a false report was lodged. He did not commit any crime and was injured in a road accident. It is claimed that he was summoned from the house and was arrested on false grounds. It is further submitted that no DNA examination was done to fix the culpability of the appellant in the alleged crime and even the victim was not examined as witness for the purpose of identification of predator. Claiming the conviction as bad in law, a request has been made to allow the appeal.
5. Opposing it, State has made a contention that in the light of named FIR, statement of witnesses, the age of victim and her medical report, with no angle of enmity proved by defence, the conviction and sentence deserve no interference.
6. Counsel for both the parties have been heard and record has been perused.
7. The age of victim in this case is not under challenge which was almost two years as on the date of incident. Her medical report marked as Ex. P/12 and proved by Dr. Achla Sahaya (PW/8) has also not been given any serious exception by defence. This report very clearly proves that victim was raped and had multiple bruis
